W v Director of Public Prosecutions

To prove a breach of an Anti-Social Behaviour Order, the prosecution must establish by evidence that the order was made, identify the defendant as the person subject to it, and prove the order’s terms. The court cannot treat the order as established merely because it is said to be a matter of record or because the defence failed to raise the issue in advance. A defective prosecution on the ASBO charge does not taint a separate criminal damage conviction where that conviction rests on evidence independent of the alleged order.

W, aged 15 at the time of the offences, appealed from his convictions by Alnwick Youth Court. He had been convicted of criminal damage under section 1(1) of the Criminal Damage Act 1971 and of breaching an Anti-Social Behaviour Order, contrary to section 1(10) of the Crime and Disorder Act 1998.

The prosecution called evidence that W threw a stone which broke a shop window. It did not, however, produce the ASBO, the court register, or other evidence proving that an order had been made against W or establishing its terms. The central issues were whether those matters required formal proof and whether the failure affected the criminal damage conviction.

1. ASBO conviction quashed. The prosecution was required to prove the allegations made against W. It had produced no evidence that an ASBO had been made, no evidence of its terms, and no evidence that the order had been made against W.
2. The court answered the questions in the case stated affirmatively. The prosecuting authority must prove that an ASBO was made in respect of the person before the court. It must also prove both that an order was made and that the person named in it was the same person as the defendant. On the evidence before the youth court, the justices could not properly conclude that W was prohibited from engaging in the conduct alleged.
3. The court considered the matter to be precisely covered by R (on the application of Kingsnorth and Denny v Director of Public Prosecutions [2003] EWHC Admin 786.
4. The separate criminal damage conviction was safe. The magistrates had heard evidence from Mr Singh and W, gave a reasoned judgment, and their finding that W threw the stone was not predicated on knowledge that an ASBO existed. The evidence was abundant and overwhelming.
5. The conviction for breaching the ASBO was quashed. The criminal damage conviction was upheld. The one-year supervision order survived in relation to that conviction. Detailed assessment of the publicly funded costs was ordered.

• High Court (Administrative Court): The appeal from the Alnwick Youth Court was allowed in part. The ASBO-breach conviction was quashed, while the criminal damage conviction was upheld.